“I’VE GOT THE POWER!”

What has that got to do with me I hear you ask? Surely that’s only for people who are elderly or suffering from dementia?

Having a Power of Attorney (PoA) affords you protection against life’s uncertainties and allows you to appoint an attorney to look after your best interests during your lifetime should you become incapable. There are three types of attorney; a continuing attorney who deals purely with financial affairs, a welfare attorney who looks after all welfare needs such as long term care and a combined attorney who deals with both welfare and financial matters. In the event that you lose capacity and become unable to deal with your own affairs, without a PoA, those closest to you may require to instigate a court process to have a guardian appointed to look after your affairs; a time consuming and often expensive process.

Contrary to popular belief, PoAs are not just for the elderly and infirm. Whilst this may be when the powers are actually used, it is crucial to have the document in place before capacity is lost. If an adult is deemed to be incapable, then he or she is unable to grant a PoA and, instead, a Guardianship Order would require to be sought from the court. Aside from the court fees involved, as the Guardianship process can take a number of weeks, urgent action cannot be taken for an incapable adult, if required, as their assets are frozen until the order has been granted by the court.

You can appoint anyone over the age of 18 to be your attorney. However, it should be someone you trust implicitly and believe will be in a position to handle your affairs, be it financial or welfare.

Continuing Power of Attorney

A Continuing PoA relates only to financial matters and authorise an individual or firm to look after your finances or matters relating to your property. When these powers become effective can be specified in the document; whether that is on the registering of the document, at the onset of incapacity, or at a different time. If the PoA is only to become active when you are no longer capable of managing your affairs, then a statement must be provided in the document expressing how this is to be determined – for example, on the advice of a qualified medical practitioner. The specific powers you wish to grant are entirely a matter for you and should be narrated in the document. Although difficult, it is best to try and foresee any matters arising in the future and, as such, keep the powers as wide as possible.  Some examples of the powers which should be included within the deed are, the power to open, close and operate a bank account, to make gifts from your estate, deal with tax planning affairs and purchase or sell a home.

Welfare Power of Attorney

A Welfare PoA operates by granting authority to an individual to look after your wellbeing should you become incapable. Becoming incapable does not only include such things as dementia or Alzheimers, but should you become involved in an accident resulting in you no longer being capable of making decisions for yourself, having a Welfare Power of Attorney in place could be vital to allow someone to manage your welfare needs. Again, the powers you wish to grant your welfare attorney will be specified in the document and should, ideally, attempt to cover all foreseeable decisions relating to your welfare. Powers which could be included consist of deciding where you should live or what care home you should move to, should this be required.

If an adult becomes incapable and a PoA is not in place, then an application for a guardianship order must be made to the court in order that someone can be appointed to attend to the adult’s affairs. A family member or friend can be appointed as a financial and/or welfare guardian. However, as the application process is somewhat onerous, a solicitor can also be appointed to carry out this function.

Unfortunately, none of us know what the future holds. However, what is clear is that a little prudent planning for the future can save time (and money!) and allow safeguards to be put in place should you ever become incapable of attending to your own affairs.

Gilson Gray’s Private Client team are well-equipped to advise you on such matters and would be happy to discuss your requirements regarding a Power of Attorney.

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For More Information Contact:
Laura King
Mobile: 07841 920 095
Direct Dial: 0131 516 5359
Email:lking@gilsongray.co.uk

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For More Information Contact:
Ailidh Ballantyne
Direct Dial: 0141 530 2037
Email:aballantyne@gilsongray.co.uk

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The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.